Afzali (Shafiq) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SHAFIQ AHMED AFZALI,
Appellant,
No. 54019
FILE
vs.
JUL 2 2 20 6
THE STATE OF NEVADA,
TRACE K. LINDEM kN
Respondent. CLE% OF SUPREME COURT
By-.--d
DEPUTY CLERk
ORDER AFFIRMING IN PART AND REVERSING IN PART
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of 11 counts of lewdness with a child, 15 counts of sexual
assault of a child under 14 years of age, 2 counts of first-degree
kidnapping, 1 count of second-degree kidnapping, 3 counts of battery with
intent to commit a crime, 3 counts of using a minor in the production of
pornography, and 22 counts of possession of child pornography. Eighth
Judicial District Court, Clark County; James M. Bixler, Judge.
Appellant Shafiq Ahmed Afzali allegedly sexually abused
three children: DB, BM, and TM. The primary victim, DB, was abused
over the course of approximately three years. Afzali was arrested after his
conduct was reported to police and thousands of child pornography images
were discovered in his apartment, including pornographic material
depicting DB. Afzali was charged with 63 felony counts related to child
pornography and sexual conduct towards the three children.' At trial,
Afzali denied any guilt and claimed that DB was sexually aggressive and
consented to his inappropriate conduct. He was acquitted on the counts
1 The facts of this case are only recounted to the extent necessary to
explain this court's legal reasoning.
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related to TM and on three of the child pornography possession charges.
However, a jury convicted Afzali on the other 57 counts.
Afzali raises a number of issues on appeal: (1) whether the
district court's policies regarding the grand jury-selection process violated
Afzali's due process and equal protection rights; (2) whether the district
court erred by admitting certain rebuttal evidence and by denying Afzah's
related motion for mistrial; (3) whether the possession of child
pornography convictions and the sexual assault and lewdness convictions
violate the Double Jeopardy Clause or the proscription against
redundancy; and (4) whether the State presented sufficient evidence to
support the counts for sexual assault and lewdness. 2
2 Afzalimakes a number of additional arguments: (1) the district
court erred by denying Afzali's motion to sever the possession of child
pornography charges from the sexual assault and lewdness charges; (2)
the district court erred by denying Afzali's motion for independent
psychological evaluations of DB and BM; (3) the district court erred by not
conducting a proper inquiry into whether he needed a new attorney, and
in creating a conflict between him and his attorney by addressing the
issue in open court before the State; (4) the district court erred by refusing
to provide Afzali's particularity instruction and providing the State's no
corroboration instruction; (5) the district court's interpretation of NRS
200.730 leads to absurd results, and the statute is unconstitutionally
vague; (6) Afzali's sentence constitutes cruel and unusual punishment;
and (7) cumulative error warrants reversal.
We conclude that these arguments are without merit for the
following reasons: a) the possession charges are connected to the sexual
assault and lewdness charges because the police's possession of 25
pornographic images cannot be explained without presenting evidence
related to the sexual assault and lewdness charges, so the district court
did not err; (2) Afzali failed to meet his burden of demonstrating a
compelling need for the examinations pursiiant to Abbott v. State, 122
Nev. 715, 723-25, 138 P.3d 462, 467-69 (2006); (3) Afzali voluntarily
withdrew his motion to substitute counsel prior to trial and never re-filed
continued on next page...
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Afzali does not demonstrate a prima fade fair cross-section violation
This court published Afzali v. State, 130 Nev., Adv. Op. 34,
326 P.3d 1 (2014), instructing the district court to provide Afzali with
demographic information regarding the grand juries that indicted him.
After the case was remanded and the demographic information discovered,
the parties provided supplemental briefing on appeal in which Afzali
argues that the racial groups were underrepresented on the grand jury
venires
"[A] prima facie violation of the fair-cross-section
requirement[ ]" is demonstrated by showing
(1) that the group alleged to be excluded is a
distinctive group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation
is due to systematic exclusion of the group in the
jury-selection process."
...continued
it prior to trial, thus, the issue was not preserved for appeal; (4) defense
counsel tacitly acknowledged that Afzali's theory of defense was embodied
in the consensual intercourse instruction, and thus, Afzali's reliance on
Crawford v. State, 121 Nev. 744, 121 P.3d 582 (2005), is misplaced as the
district court had no obligation to give the proposed particularity
instruction; (5) NRS 200.730 does not lead to absurd results and is not
unconstitutionally vague, as the statute was interpreted in Castaneda v.
State, 132 Nev., Adv. Op. 44, P.3d (2016); (6) the sentence imposed
was not cruel and unusual because district courts are afforded wide
discretion in sentencing, and the sentence imposed was not outside of the
statutory limits for the 57 felony counts Afzali was convicted of; and (7)
there were no errors justifying reversal.
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Williams v. State, 121 Nev. 934, 940, 125 P.3d 627, 631 (2005) (internal
quotation marks omitted) (emphasis omitted). After reviewing the
supplemental record, it is clear that the grand jury selection process in no
way accounted for race. NRS 6.110 sets forth the requirements for grand
jury selection. First, the clerk of the court must select at least 500
qualified persons at random to whom a questionnaire is mailed. NRS
6.110(1). In Clark County, it appears that 5000 qualified people are
mailed questionnaires. The questionnaires do not inquire into race, and
the 5000 names are randomly drawn from department of motor vehicle
and Nevada power records. The initial venire consists of the first 100
qualified people who return their questionnaires to the clerk. NRS
6.110(1). Second, the district court judges in Clark County select 50
potential grand jurors from the 100-person list. NRS 6.110(2) Third, the
presiding district court judge uses a lottery system to select 17 grand
jurors and 14 alternates from the 50-person group. NRS 6.110(3).
Because each of the three Williams factors must be shown, and Afzali
failed to demonstrate that racial minorities were systematically excluded
from the grand jury-selection process, we conclude that there has not been
a fair cross-section violation. Williams, 121 Nev. at 940, 125 P.3d at 631
(noting that so long as the process is designed to pick jurors from a fair
cross section of the community, variations that lead to the exclusion of a
certain class of persons within the venire do not offend the law.)
The district court did not err by admitting certain rebuttal evidence and by
denying Afzali's related motion for a mistrial
Afzali makes two arguments: (1) the district court erred by
admitting the State's rebuttal evidence of Afzali's prior bad acts because
Afzali never "opened the door" to these bad acts, and (2) the district court
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erred in denying Afzali's motion for a mistrial on the grounds that such
evidence was admitted.
Afzali did not object to the rebuttal evidence either before or at
the time it was presented to the jury. Rather, he later moved for a
mistrial on the grounds that such rebuttal evidence was admitted. We
conclude that Afzali waived his right to appellate consideration by failing
to object to the rebuttal evidence prior to it being heard by the jury. Moore
v. State, 122 Nev. 27, 36, 126 P.3d 508, 514 (2006). Furthermore, his
failure to object precluded him from moving for a mistrial on the same
grounds.
Afzali's double jeopardy and redundancy claims
Afzali raises a redundancy argument as to the possession
convictions and double jeopardy and redundancy arguments as to the
sexual assault and lewdness convictions.
The possession of child pornography convictions were redundant
Afzali argues that he can only be charged with one count of
possession of child pornography under NRS 200.730 because the core
element of the statute is "possession" and he possessed "all [22]
items . on the same day at the same time." "[Al claim that convictions
are redundant stems from the legislation itself and the conclusion that it
was not the legislative intent to separately punish multiple acts that occur
close in time and make up one course of criminal conduct." Wilson v.
State, 121 Nev. 345, 355, 114 P.3d 285, 292 (2005).
Nevada law sets forth the following prohibition on the
possession of child pornography:
A person who knowingly and willfully has in his or
her possession for any purpose any film,
photograph or other visual presentation depicting
a person under the age of 16 years as the subject
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of a sexual portrayal or engaging in or simulating,
or assisting others to engage in or simulate, sexual
conduct [is guilty of a felony.]
NRS 200.730.
In Castaneda v. State, this court reviewed whether possession
of numerous images of child pornography results in one or multiple
charges under NRS 200.730. 132 Nev., Adv. Op. 44, P.3d (2016).
We determined that the statutory text is ambiguous and applied the rule
of lenity to conclude that only one charge can be sustained when the
images are presented as a group and "individual distinct crimes of
possession" are not established. Id. at 5-7, 15. Castaneda downloaded 15
images onto his laptop, which he copied onto his flash drive and desktop.
Id. at 14-15. However, no evidence was presented that he had downloaded
the images at different times or locations. Id. at 15. Thus, we overturned
all but one of his possession convictions. Id.
Here, the jury was presented with 25 images of child
pornography on a CD and convicted Afzali on 22 of the possession counts.
However, while testifying, the LVNIPD detective who created the 25-image
CD did not discuss whether any of the 25 images were downloaded or
possessed at different times or locations. Accordingly, because the State
did not present sufficient evidence to overcome the redundancy issue, we
overturn 21 of Afzali's 22 convictions for possession of child pornography
under NRS 200.730.
The sexual assault and lewdness convictions do not violate the
Double Jeopardy Clause but the redundancy issue depends upon the
sufficiency of the evidence presented at trial
Afzali argues that many of the sexual assault and lewdness
convictions violate the Double Jeopardy Clause and are redundant.
Afzali's contends that "the State presented no evidence that the lewd acts
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were 'separate and distinct' or that a significant amount of time
interrupted the lewdness and sexual assaults."
"A claim that a conviction violates the Double Jeopardy Clause
generally is subject to de novo review on appeal." Davidson v. State, 124
Nev. 892, 896, 192 P.3d 1185, 1189 (2008). "[U]nder Article 1, Section 8(1)
of the Nevada Constitution, 'kilo person shall be subject to be twice put in
jeopardy for the same offense." Id. at 897, 192 P.3d at 1189 (second
alteration in original). "The Double Jeopardy Clause has been interpreted
to encompass three distinct functions." Garcia v. State, 121 Nev. 327, 342,
113 P.3d 836, 845 (2005). "[It] protects a criminal defendant (1) from a
subsequent prosecution following a conviction on the charges, (2) from a
subsequent prosecution following an acquittal, and (3) from multiple
punishments for the same offense in a single trial" Id. As to the third
protection, this court
utilizes the test set forth in Blockburger v. United
States[, 284 U.S. 299, 304 (1932),] to determine
whether multiple convictions for the same act or
transaction are permissible. Under this test, if the
elements of one offense are entirely included
within the elements of a second offense, the first
offense is a lesser included offense and the Double
Jeopardy Clause prohibits a conviction for both
offenses.
Salazar v. State, 119 Nev. 224, 227, 70 P.3d 749, 751 (2003), disapproved
of on other grounds by Jackson v. State, 128 Nev. 598, 609-13, 291 P.3d
1274, 1281-83 (2012) (footnotes omitted) (internal quotation marks
omitted).
Lewdness requires the following elements:
A person who willfully and lewdly commits any
lewd or lascivious act, other than acts constituting
the crime of sexual assault, upon or with the body,
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or any part or member thereof, of a child under
the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust or passions or
sexual desires of that person or of that child . . . .
NRS 201.230(1). Sexual assault requires the following elements:
A person who subjects another person to sexual
penetration, or who forces another person to make
a sexual penetration on himself or herself or
another, or on a beast, against the will of the
victim or under conditions in which the
perpetrator knows or should know that the victim
is mentally or physically incapable of resisting or
understanding the nature of his or her conduct
NRS 200.366(1). 3
Sexual assault and lewdness each have a separate element.
Sexual assault includes the element of "sexual penetration," NRS
200.366(a), whereas the offense of lewdness includes the element of a lewd
act "other than acts constituting the crime of sexual assault." NRS
201.230(1). Thus, double jeopardy concerns are not implicated.
However, in Crowley v. State, this court discussed whether
convictions for lewdness and sexual assault stemming from the same
underlying incident were redundant. 120 Nev. 30, 33-34, 83 P.3d 282, 285
(2004). We noted that "a case may support convictions on separate
charges 'even though the acts were the result of a single encounter and all
occurred within a relatively short time." Id. at 33, 83 P.3d at 285 (quoting
Wright v. State, 106 Nev. 647, 650, 799 P.2d 548, 549-50 (1990)).
3 BothNRS 200.366 and NRS 201.230 were amended in 2015. See
2015 Nev. Stat., ch. 399, §§ 8, 15, at 2235-36, 2241. This disposition only
discusses the statutes prior to the amendments.
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However, we concluded that the defendant "never interrupted his actions"
between his lewd act and his sexual assault, so the counts were
redundant. Id. at 33-34, 83 P.3d at 285.
Afzali argues that the lewd acts were not separate from the
sexual assaults. Specifically, he argues the following regarding DB:
lewdness counts 7 and 8 are redundant to sexual assault counts 9 and 10;
lewdness counts 20, 21, and 22 are redundant to sexual assault counts 12,
13, and 14; and lewdness counts 28 and 29 are redundant to sexual
assault counts 31 and 32. Thus, the question becomes whether the State
presented sufficient evidence in support of the sexual assault counts, and
separately, in support of the lewdness counts, to justify all of the
convictions without redundancy.
The State presented sufficient evidence to support the counts for sexual
assault and lewdness
Afzali challenges the sufficiency of the evidence, which is
commingled with the redundancy issue, 4 towards the 15 sexual assault
convictions and the 8 lewdness convictions concerning DB.
"The Due Process Clause of the United States Constitution
requires that an accused may not be convicted unless each fact necessary
to constitute the crime with which he is charged has been proven beyond a
4Afzali also argues that count 4, 5, and 6, are redundant, regarding
lewd acts towards BM. However, BM's testimony establishes at least
three separate instances where Afzali touched her breasts, buttocks, and
genitals; sometimes separately, sometimes together. Specifically, she
testified that Afzali touched her chest, buttocks, and genitals two or three
different times in Afzali's bedroom prior to June 8, 2007. She also testified
that on the evening of June 8, 2007, Afzali touched her inappropriately in
his bathroom. Thus, count 4, 5, and 6 are not redundant because there
was sufficiently particular evidence towards each count.
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reasonable doubt." Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414
(2007). "A jury verdict will not be overturned if there is sufficient evidence
in the record to substantiate the jury's finding." King v. State, 87 Nev.
537, 538, 490 P.2d 1054, 1054 (1971). "The jury is the sole and exclusive
judge of the credibility of the witnesses and the weight to be given the
evidence." Id. "We review a claim of sufficiency of evidence by looking at
the facts in the light most favorable to the State." Grant u. State, 117 Nev.
427, 435, 24 P.3d 761, 766 (2001). "Our inquiry focuses on whether there
is substantial evidence in the record to support the jury's verdict, and
whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Id.
As previously stated, Afzali argues that the lewdness counts
are redundant to the sexual assault counts. Afzali also asserts that DB
only testified with the requisite particularity to 6 separate incidents of
sexually assault, thereby reducing the 15 counts of sexual assault to 6.
"We have repeatedly held that the testimony of a sexual
assault victim alone is sufficient to uphold a conviction." LaPierre v. State,
108 Nev. 528, 531, 836 P.2d 56, 58 (1992). "However, the victim must
testify with some particularity regarding the incident in order to uphold
the charge. We are cognizant that child victims are often unable to
articulate specific times of events . ." Id. Thus, "[v]e do not require
that the victim specify exact numbers of incidents, but there must be some
reliable indicia that the number of acts charged actually occurred." Id.
DB testified that Afzali touched her chest, buttocks, and
genitals with his hands, mouth, and genitals approximately 20 separate
times before moving into the Ivy Apartment Complex. After moving into
separate units at the Ivy Apartment Complex, DB testified that Afzali
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continued to inappropriately touch her. She testified that these incidents
happened both in his apartment and in her apartment, and she could not
estimate the number of separate times Afzali committed these acts while
in the Ivy Apartment Complex because there were "[s]o many." Further,
she stated that sometimes he touched or rubbed her private areas and on
other occasions he penetrated her private areas.
Afzali was convicted of 15 counts of sexual assault and 8
counts of lewdness towards DB. We conclude that DB's testimony
sufficiently demonstrates at least 15 instances of sexual assault and at
least 8 separate instances of lewdness. The charges are not redundant to
each other because, according to the testimony presented, there were well
over 23 separate instances of lewdness leading to sexual assault.
Furthermore, lewdness is only redundant to sexual assault when both
convictions arise out of a single encounter." Crowley, 120 Nev. at 33, 83
P.3d at 285 (internal quotation marks omitted). Therefore, redundancy is
not implicated because there is sufficient evidence to demonstrate that the
lewdness and sexual assault convictions arose out of separate incidents.
We also conclude that DB testified with sufficient particularity
to support each of the 15 convictions of sexual assault and 8 convictions of
lewdness. In testifying that Afzali acted inappropriately well over 20
separate times, DB described incidents both before and during the time
she lived in the Ivy Apartment Complex. She provided details about
where many of the assaults occurred, including testimony about incidents
that occurred on couches, on his bed, on her bed, and in his bathroom. She
described all of the private areas that Afzali touched and penetrated, on
multiple occasions. Some of her testimony was corroborated by the
videotape evidence and Afzali's own admissions. It would be unreasonable
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to expect DB to remember anything more than she provided, such as
specific dates, because the abuse occurred over the course of more than
three years in many different locations. Accordingly, we conclude that the
15 convictions of sexual assault and 8 convictions of lewdness shall not be
overturned.
Accordingly we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART.
-19CIAit
Parraguirre
CC.J.
J.
Hardesty
J.
J.
Gibbons
J.
Pickering
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cc: Hon. James M. Bixler, District Judge
Attorney General/Carson City
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
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